Volume 58, Spring 2013
Editor’s Note: The National Law Review chose an earlier version of this Note as one of the winners of its Fall 2012 Law Student Writing Contest. The Author, Laura Ploeg (VLS ’13), is a two-time winner of that national competition.
Abstract: The Supreme Court, in Chamber of Commerce v. Whiting, should have found that federal law pre-empts the Arizona law, and that the Court’s holding will have serious consequences. Whiting departs from the Court’s traditional application of implied pre-emption and general pre-emption principles, which are well established and have been repeatedly applied over many years. The Court used implied pre-emption principles only a few years ago to strike down a state law with a similar relationship to federal law as the laws in Whiting. The Whiting Court should have found the Arizona law pre-empted by federal law because it undermines several federal objectives. Moreover, Whiting could create serious practical problems and has already begun to do so, as more state immigration laws are proposed and passed. It is time to return an exclusively federal power to the federal government and tear down the façade of state laws purporting to regulate employment, housing, and the like, while essentially regulating immigration. Dissatisfaction with federal law must be addressed at the federal level.
Abstract: This Essay considers the potential implications for securities class actions of Standard Fire Insurance Co. v. Knowles, which is presently before the Supreme Court. Although the ultimate question in Knowles is whether the plaintiff class may be gerrymandered so as to avoid removal to federal court, a closely related question may arise in securities fraud class actions (which are filed in federal court in the first place). In an action under SEC Rule 10b-5, the plaintiff typically seeks to recover for losses suffered as a result of buying a stock at a price inflated by management misrepresentations. In such a case, the measure of damages is the difference between the price paid and the price at which the stock settles after corrective disclosure. Although this remedy is well-established, it is fundamentally flawed in that it includes losses suffered by the corporation itself that impact all stock holders should be the subject of a derivative action. Courts should decline to certify most Rule 10b-5 actions as class actions because the plaintiff class invariably includes diversified portfolio investors—buyer-holders, who will lose more on the shares they hold because of the class action itself than they will gain on the shares they bought during the fraud period. Knowles is an ideal opportunity for the Court to make it clear that a class action is a matter of judicial grace, and that as such, the courts have the power and the duty to assure that the device is used efficiently and equitably.
Volume 58, Spring 2012
Abstract: Employment discrimination on the basis of race, gender, and ethnicity has long plagued America’s workforce. Congress passed Title VII to address this concern, which outlawed both intentional and pretextual discrimination—referred to as disparate treatment and disparate impact, respectively. But what happens when two different racial groups bring competing disparate treatment and disparate impact claims seeking to compel an employer to take mutually exclusive actions—one threatening to sue if an employer takes a given action and the other threatening to sue if the employer does not take that same action? Should one claim trump the other? The Supreme Court in Ricci v. DeStefano, carved out a limited defense against a disparate treatment claim where there was a “strong basis in evidence” to believe that not taking the intentionally discriminatory action would result in a disparate impact claim. In NAACP v. North Hudson Regional Fire & Rescue the Third Circuit used a novel temporal distinction to restrict the Ricci defense to its facts. This Casebrief argues that the Third Circuit’s decision reinforced the court’s commitment to upholding Title VII’s purpose of eliminating discrimination by narrowly interpreting the available defenses to liability. After all, two wrongs don’t make a right.